46 F.

3d 1151
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Cathy PECK, Plaintiff-Appellant,

v.
VAIL ASSOCIATES, INC., a Colorado corporation,
Defendant-Appellee.
No. 94-1015.
United States Court of Appeals,
Tenth Circuit.
Jan. 18, 1995.

ORDER AND JUDGMENT1

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.2

Plaintiff Cathy Peck filed this diversity action against defendant Vail
Associates, Inc., alleging that she suffered injuries to her knee and tailbone in a
skiing accident because of defendant's negligent placement of safety cones on
each side of the exit ramp at the top of a chairlift. The district court granted
summary judgment to defendant on grounds that plaintiff's injury was caused
by an inherent danger and risk of skiing, and her action was, therefore, barred
by the Colorado Ski Safety Act, Colo.Rev.Stat. 33-44-101 to -114 (1984 &
Supp.1993). Plaintiff now appeals. This court reviews the grant of summary
judgment de novo. James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th
Cir.1994). We also review de novo the district court's interpretation of state
law. Salve Regina College v. Russell, 499 U.S. 225, 239 (1991). We affirm.

The circumstances of the skiing accident are undisputed. As plaintiff and three
other skiers exited the chairlift, plaintiff caught the tip of her ski on one of the
safety cones used to demarcate the unloading ramp. The cones, which were
positioned fifteen and one-half feet apart at the chairlift exit, tapered outward

from the lift. According to plaintiff's deposition testimony, she saw the cones
before she exited the lift. When plaintiff stood up from the chair onto the ramp,
she was not out of balance.
3

Plaintiff argues on appeal that her claim is not barred by the Colorado Ski
Safety Act because her accident was caused by defendant's "use or operation of
ski lifts." The Act, while prohibiting claims for injuries "resulting from any of
the inherent dangers and risks of skiing," 33-44-112 (Supp.1993), states that
nothing in the section defining the inherent dangers and risks of skiing "shall be
construed to limit the liability of the ski area operator for injury caused by the
use or operation of ski lifts," 33-44-103(10) (Supp.1993).

The evidence does not show, however, that plaintiff's injury was caused by
defendant's use or operation of the lift. Plaintiff's accident occurred after she
stood up from the chair, onto a smooth, well-groomed ramp. Plaintiff observed
the safety cones and gained her balance before proceeding down the ramp. We
agree with the district court's conclusion that safety cones are an inherent
danger and risk of skiing. As the district court reasoned, safety cones are akin
to fences or signs, two of the many inherent dangers and risks specifically
enumerated by the Act. Therefore, plaintiff's claim is barred by the Act.

The judgment of the United States District Court for the District of Colorado is
AFFIRMED.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without
oral argument. See Fed.R.App.P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument